I assess the evidence of each
of the plaintiff and the three defendants. There are inconsistencies in the
plaintiff’s
evidence and assertions which have dubious credibility.
Similarly there are inconsistencies and matters of dubious credibility
in
each of the defendants’ evidence.
It is common ground that the
plaintiff had misappropriatsubstantial sum belonging to the third
defendant or t or the third
defendant firmly believed that was so. There have
been criminal proceedings and a conviction of the plaintiff. That money was
to be used to start a kava and other commodities export business. It was
part of the third defendant’s case that not
one vatu had been repaid at that
time.
It uggested as part of the
defendants’ case that the plaintiff was happy to see the thir third defendant to
sort the matter
out. I find that unlikely. In my judgment the plaintiff
wanted to avoid the third defendant.
I have assessed the eve of
Marie Kato. I accept it. I found her to be a reliable witness. She used to
work for Capt.
Jarner, but decided to leave. She heard Capt. Jarner offering
Patrick money to beat up the plaintiff. She put this in writing
(Annexure C
of the plaintiff’s affidavit). She asked Patrick when he was on his own
about this and Patrick agreed it.
<
I look e evidence of James
Niurie. I make no judgment on his capabilities as a custom doctoroctor. I accept
his evidence
that on the day of this incident, the plaintiff came to him
complaining of pain to his chest and ribs and soreness inside.
Nuirie saw
some blood around the plaintiff’s nose and mouth. I accept the evidence of
Honore Maurice, the nurse. He saw
the plaintiff three days later. There were
no visible injuries, but it was consistent with, although not in itself
proof
of what the plaintiff alleged. The plaintiff was complaining of pain
to his chest.
Tungon Samson gave evidence
that towards the end of July Thomas was asking the whereabouts of the
plaintiff. He s He said that
Thomas after the incident told him that they had
found Chief Apela, taken him to the office “mo emi toktok tumas nao mitufala
I faetem” In cross-examination he was unshaken and amplified the details. I
accept his evidence.
I turn to the evidence of the
tiff. I approach it with care as there clearly are errors iors in
recollection, inconsistencies
and matters of questionable truth. I do accept
that he was approached at the airport by Thomas and Patrick and went
unwillingly
to the third defendant’s premises. I accept that he was
assaulted about the head and body by a combination of the three defendants
acting in concert. Thomas and Patrick delivering the blows and the third
defendant blocking the plaintiff from leaving
and aiding and abetting the
assault.
I do not accept the third
defendant’s evidence when he says he offered only comon for the
recovery oery of the debt, nor
that his action was one of breaking up a minor
skirmish. Where the evidence of the plaintiff and of the third defendant are
in conflict on essential issues, I prefer the evidence of the plaintiff.
I find on the balance of
probabilities that the third defendant was very angry with the plaintiff
because he believed
he had misappropriated his money. He enlisted the
assistance of Thomas and Patrick to find the plaintiff and bring the
plaintiff to him. He might not have known precisely when that would occur ;
but I find it did occur. Once there, and when
it was clear no money would be
repaid, the plaintiff was beaten at the bidding of the third defendant. I do
not find
his only involvement was to break up a minor skirmish.
I do not accept the evidence of
Thomas and Patrick whereiffers on essential matters from the plaintiff.
In paIn particular,
the plaintiff is of short stature, and over 50 years old.
Thomas and Patrick are taller, younger, more well-built men. The
plaintiff
was faced with three people. I do not find Thomas acted in self-defence.
They were motivated by a reward. They
sought the plaintiff first at his
house and then at the airport. They brought him to face the man whose money
he had
allegedly misappropriated. Once there they beat him.
I indicated during closing
submissions I would not make a finding of conspiracy. It is difficult to
tell on the evidence
whether the plaintiff has shewn on balance if there was
a kidnapping from the airport; as the burden of prooupon upon him
I find
this claim, and that of assault at the airport fail.
class="ass="MsoNormal" style="margin-top: 1; margin-bottom: 1">
However, I am satisfied that
once at theises of Capt. Jarner he was prevented from leaving and he
he
was assaulted.
The assault itself was not of a long duration, probably a
matter of a few minutes, and in itself not a serious assault. However
there
was a false imprisonment and assault perpetrated by the three defendants.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The evidence of Firiam Yvon,
called for the defendant had little or no bg on the case. The evidencedence
of Vicky Leo
did little to advance the defendants case, and did not
undermine the essential elements of the plaintiff’s case.
Accordingly I give judgment for
the plaintiff. Unless persuaded otherwise I pe to assess the general
l
damages and
costs now. The assault and false imprisonment were not serious
and of short duration. I will hear argument on each and make
a finding now.
Having heard argument I assess
the general damages at Va0.000 and costs at Vatu 60.000, and give
judgment acct accordingly.
This is a claim that should have been brought in the
Magistrates Court. It is a matter between the plaintiff and his lawyer
as to
what advice was given on where to bring the claim, especially when the
payment of fees is considered.
Dated at Port Vila this 1st
day of June 2001.
R. J. Coventry
Judge
